There have been several court decisions lately across the country related to states’ Right to Farm statutes. These cases provide good examples of the types of claims that can arise against a farm operation and also illustrate the differences between each state’s Right to Farm Act.
The Pennsylvania Right-to-Farm Act was at issue in Burlingame v. Dagostin, 2018 WL 1530690. Since 1955, the Dagostin family has operated a farm in Luzerne County. Up until 1990, it was a dairy, but then was switched to a beef farm. In 2011, the family decided to convert to a concentrated animal feeding operation (CAFO) for pigs. The farm developed a required nutrient management plan prior to beginning the CAFO operations. The facilities were built and the first shipment of pigs arrived in January 2013. At some point after that, the Dagostin family began spreading liquid swine manure (LSM) on their surrounding farm fields.
In May 2014 and April 2015, neighbors of the farm filed a nuisance suit against the Dagostin’s spreading of the LSM. The Dagostin family moved for summary judgment arguing their operation was protected by the PA Right to Farm Act. The trial court agreed that the Act prohibited the plaintiffs’ claims and entered judgment in favor of the Dagostins. The plaintiffs appealed.
The court found the following under the PA Right to Farm Act:
(1) The farm lawfully operated since 1955, which was more than one year prior to the filing of the nuisance complaints. The plaintiffs argued it was the date the CAFO began or the LSM was initially spread that should be considered, but the court reasoned that the “agricultural operation” was the entire farm, which began decades ago. Thus, this prong of the test was satisfied.
(2) The spreading of LSM in the fields is a normal agricultural operation. The parties did not dispute this fact.
(3) Either the conditions or circumstances that are the basis for the complaint existed unchanged since the established date of operation or if there have been expansions or changes, the facilities have (a) operated for at least 1 year prior to the filing of the complaint or (b) been addressed in a nutrient management plan approved prior to the commencement of such expansion, which as been followed. The court easily found that the construction of a 40,000 square-foot barn and 1.8 million-gallon storage pit was a substantial expansion. Thus, the question became whether the facility operated for at least 1 year prior to the complaint being filed or adopted a nutrient management plan prior to expansion. Here, the nutrient management plan was adopted and approved prior to beginning operation of the CAFO. Further, the court found that the farm had followed the approved plan.
Thus, the plaintiffs claims were dismissed because the Right to Farm Act applied. As the Court noted, “We do not doubt that Plaintiffs are legitimately aggrieved by the odors associated with the farm’s expanded/altered operation. However, our legislature has determined that such effects are outweighed by the benefit of established farms investing in the expansion of agricultural operations in Pennsylvania, in regulatory compliance with approved nutrient management plans.”
The plaintiffs have sought review from the Pennsylvania Supreme Court. [View article here.]
In Riddle v. Lanser, 2018 WL 1661600, the Alaska Supreme Court determined that storage of septage in farm lagoons that was not related to farming, but instead to the defendant’s septic pumping and storage business, was a nuisance and that the Alaska Right to Farm Act did not apply.
Mr. Riddle purchased farmland near Fairbanks in 2005. He began fencing and clearing the land, acquired farm equipment, and raised livestock and various crops on the property. Mr. Riddle also owned Fairbanks Pumping and Thawing, a company that pumps septic tanks. When he purchased the farmland, he also built five septage lagoons on the property and began dumping septage he collected in his business into the lagoons. In 2010, Riddle began allowing other septic businesses to dispose of their septage in his lagoons for a fee. Riddle began spreading spetage on his farmland in June 2010.
In 2007, Mr. Lanser purchased land next to Mr. Riddle and began building homes on the property. Lanser reported odors from Riddle’s farm in May 2010. In 2010 and 2011, other neighboring landowners began complaining about the smell. Lanser field suit against Riddle in December 2011 claiming nuisance and seeking an injunction.
The trial court found that Riddle’s septage storage and application was a nuisance and that the Alaska Right to Farm Act did not apply. First, the court reasoned that Riddle’s farm was not an “agricultural facility” that was “used or intended for use in the commercial production of crops, livestock, or livestock products” as required by the statute. The court noted that Riddle had not sold any crops or other farm products and had reported no income from farming. Although the court noted Riddle may, at some point in the future, use the farm for commercial production, based upon the fact he appears to be growing sod for sale, that was not not enough under the statute. The court viewed Riddle’s operation or more a “hobby farm” than a “commercial farm” that was protected under the Act. Second, the court held that the septic lagoons were not an “agricultural operation” as defined in the Act because he was not operating the lagoons in conjunction with agricultural activities. Although Riddle said he intended to eventually use the lagoons to support farm activities, he was not yet doing so.
On appeal, the Alaska Supreme Court affirmed. Even if Riddle’s farm was a “commercial agricultural facility” and even if the lagoons were an “agricultural operation,” he did not use (or intend to use) the lagoons in a farming capacity until after the lagoons had already become a nuisance. The Right to Farm Act provides that if an agricultural facility was not a nuisance when it began, changes in the facility’s surrounding cannot turn the facility into a nuisance. But this was not the situation here: Riddle did not intend to use the lagoons for farming when he built them and didn’t use them for any farming-related purpose until they had already become a nuisance. Thus, because the lagoons were already a nuisance by the time Riddle started spreading septage on his fields, the Right to Farm Act did not apply.
Plaintiffs in Georgia Pacific Consumer Products LP v. Ratner, 812 S.E.2d 120, filed suit against a recycled paper mill plant near their homes claiming nuisance. The Georgia Court of Appeals considered whether the Georgia Right to Farm Act prohibited the plaintiffs’ nuisance claims.
The paper mill was built in 1986. Approximately 130 ares of the Mill’s property has been used as a sludge disposal site. As required by law, the Mill adds bacteria to the sludge to reduce the amount of oxygen and sulfates. This process results in hydrogen sulfide being released from the disposal site, which smells like rotten eggs. The Mill is in compliance with all state and federal laws related to the sludge disposal and the emission of the hydrogen sulfide.
Plaintiffs built their homes in the area in 2000. In 2006-2007, plaintiffs began noticing issues with corrosion of metal components in their HVAC units and fixtures on their homes and odor from the hydrogen sulfide. Plaintiffs experts opined that the damages to their property were caused by the emissions from the plant. In response to complaints, the Mill engaged in remediation efforts, including replacing HVAC units and, eventually, having the sludge removed from the Mill. Nevertheless, a lawsuit was filed. The Mill argued that the Right to Farm Act prohibited the plaintiffs’ claims.
The Georgia Right to Farm Act protects “agricultural support facilities,” which are defined as “any food processing plant or forest products processing plant together with all related or ancillary activities.” Further, a “forest products processing plant” is a “commercial operation that manufactures, packages, labels, distributes, or stores any forest product.” The term “forest product” is not defined by statute. The court held that the Mill was an “agricultural support facility.” “This is because encouraging recycling conserves forest land and enables continued development of additional markets for distributing products made from wood fiber.” Thus, the Right to Farm Act applies and the lawsuit was dismissed.